SZENJ v Minister for Immigration
[2007] FMCA 197
•26 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZENJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 197 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether failure to make a finding of fact means Tribunal has not considered claim. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZENJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2311 of 2006 |
| Judgment of: | Emmett FM |
| Hearing date: | 16 February 2007 |
| Date of last submission: | 16 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr T. Silva |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitor for the Respondent: | Ms H. Dejean, Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2311 of 2006
| SZENJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 August 2004 and handed down on 14 September 2004.
The applicant was born on 1 May 1977 and claims to be from India and of Punjabi Sikh ethnicity and Sikh faith (“the Applicant”).
The Applicant claims that prior to arriving in Australia he was employed as a farmer.
The Applicant arrived in Australia on 1 January 2004, having legally departed from Delhi on a passport issued in his own name and a subclass 676 visitor’s visa issued on 12 December 2003.
On 10 February 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by the police, the India Congress Party and members of the Khalistan Movement, described by the Applicant as terrorists fighting for a separate state for Sikhs. The Applicant claimed that he feared these terrorists because he refused to give into them when they demanded food and money from the Applicant’s family farm. The Applicant claimed that the terrorists threatened to “finish our family off” if he informed the authorities of the terrorists’ actions. The Applicant claimed that, upon reporting to the police, the police accused the Applicant of being a terrorist himself. Further, the Applicant claimed that, in May 1994, the terrorists took jewellery and other valuables from his family’s farm and his subsequent confrontation with them resulted in his hospitalisation for two weeks.
On 16 February 2004, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 10 March 2004, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal (“the First Tribunal”). Before the First Tribunal, the Applicant maintained the claims made in his protection visa application. On 18 August 2004, the First Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 13 March 2006, the Federal Court of Australia (Rares J) remitted the decision of the First Tribunal for decision according to law.
On 25 July 2006, the second, differently constituted Tribunal (“the Tribunal”) handed down its decision affirming the decision of the Delegate.
On 21 August 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
The claims made by the Applicant before the Tribunal and the Tribunal’s conclusions are accurately summarised by Counsel for the First Respondent in his written submission as follows:
“As ultimately presented to the Tribunal, the Applicant claimed to fear harm in India for reason of his political opinion. He claimed to be a member of the Akali Dal (AD) party who he had assisted in elections, and to fear harm from the Congress Party (CP), who encouraged the police to harass AD members. He claimed that he and his parents were harassed by the police after the CP came to power in the Punjab in February 2002, that he was detained on two or three occasions and questioned about terrorist activities, and that as a result he left India for Botswana on 30 December 2002. He claimed the police and the Congress Party would continue to harass him if he returned to India. The Tribunal appears to have proceeded on the basis that these claims might be true, but found that they did not give rise to any well founded fear of persecution and moreover that it was reasonable for the Applicant to relocate within India”
The proceeding before this Court
At the hearing before this Court, the Applicant was represented by Mr Silva, solicitor. Mr Silva filed the Applicant’s application seeking judicial review of the Tribunal’s decision on 21 August 2006. On
12 October 2006, Mr Silva attended a directions hearing before me, at which time, the Applicant was given leave to file and serve an amended application and any further evidence by 21 December and directed to file and serve written submissions 14 days before the hearing. The proceeding was set down for hearing at that time.
On 22 December 2006, Mr Silva filed an amended application on behalf of the Applicant. On 2 February 2007, Mr Silva sent a draft further amended application to my chambers seeking leave to file and rely on the document at the hearing. On 2 February 2007, Mr Silva filed an outline of final submissions of the Applicant based on the further amended application.
The First Respondent filed written submissions on 7 February 2007.
At the commencement of the hearing, Mr Silva sought leave to file in Court and rely upon a second further amended application. The First Respondent opposed leave being granted to the Applicant to rely on the second further amended application, although did not oppose leave in respect of the further amended application. Mr Silva informed the Court that the second further amended application did no more than join together two of the grounds identified in the further amended application. Mr Silva made no other submission about any other ground of review that the Applicant sought to rely upon in the second further amended application. In the circumstances, and in light of the objection by the First Respondent, leave was refused to the Applicant to file in Court and rely upon the second further amended application. The hearing proceeded on the basis of the further amended application and leave was granted to the Applicant to file that document in court at the hearing and rely upon it.
The grounds of the application are expressed to be as follows:
Ground 1 –“The Tribunal made jurisdictional error as it failed to consider whether the applicant was persecuted in the past in order to decide whether he will be persecuted in the future
Particulars
The Tribunal accepted that the applicant was detained two to three times (once overnight) and accused of being a terrorist. Therefore the Tribunal should have made a finding whether the applicant was persecuted in the past. It then should have considered based on that finding whether he will be persecuted in the future.”
At the heart of the Applicant’s complaint in respect of ground 1 was a contention that the Tribunal failed to make any finding arising out of the Applicant’s claims of past persecution. Mr Silva submitted that such findings were necessary for the Tribunal to be able to properly consider whether the Applicant would be persecuted in the future or could relocate.
When asked by the Court what was the claim of past persecution that the Applicant contended the Tribunal did not consider, Mr Silva stated that it was the Applicant’s claim of detention for three days by the police and being accused of being a terrorist. Mr Silva submitted that, by failing to make a finding about that matter, the Tribunal had failed to consider a relevant claim.
In accordance with the First Respondent’s written submissions,
Mr Silva conceded that the Tribunal is entitled to consider the issue of relocation without making a definitive finding on whether the Applicant had suffered persecution in the past. As stated above,
Mr Silva’s submission, as I understand it, turned on a contention that by not making a finding, the Tribunal had not considered the claim.
I do not agree with the Applicant’s submission. The Tribunal considered the claim in some detail. In relation to that claim, the Tribunal stated:
“He claimed that some six months later (ie in or around August/September 2002), and prior to his departure from India in or around December 2002, he had been detained on two or three occasions (once overnight), by the local police who wished to question him. The applicant explained that on those occasions he had been ‘accused’ of supporting terrorist activities in the Punjab (emphasis added). When I put to him that country information that I had seen indicated, that for all intents and purposes, terrorist groups no longer operated in the Punjab, the applicant agreed this was correct but claimed the accusations that were made against him were false and were put at the instigation of the Congress Party (who at that time controlled the State government). Thus I understand the accusation made against the applicant was apparently designed to harass him while he was in the Punjab (which I accept is plausible), and was not otherwise supported by ‘adequate’ evidence of the applicant’s involvement of that which he was accused. That said, the applicant was only accused at this time (ie late 2002) and there is no indication that he was subsequently falsely charged and or convicted of any offence.”
Those words reflect an understanding by the Tribunal of the nature of the claims made by the Applicant and the concerns the Tribunal had with such a claim and that it put those concerns to the Applicant. Whilst the Tribunal did not make a specific finding about those claims, it is clear that the Tribunal concluded that it was not satisfied by the Applicant’s bare assertions that he was detained and accused of being a terrorist. Moreover, the Tribunal proceeded to have regard to the fact that, in any event, there was no indication before it that the Applicant was subsequently falsely charged and or convicted of any offence. A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered the Applicant’s claims of detention and harassment. The findings and conclusions were open to the Tribunal on the material before it and for which it gave reasons.
The Tribunal then went on to consider the issue of relocation of the Applicant. The Tribunal identified the relevant claims of the Applicant to that issue and concluded that:
“Be that as it may, even if I accept the applicant may have come to the adverse attention of eg the Congress Party or local Indian authorities in the Punjab (presumably at the instigation of the Congress Party), nothing the applicant has thus far claimed satisfied me that he would continue to be of adverse interest to the Congress Party or the Indian authorities should he relocate within India.”
The Tribunal concluded that, even if it accepted that the Applicant had come to the adverse attention of the Congress Party or local Indian authorities in the Punjab, the Tribunal was satisfied that the Applicant could safely relocated within India.
Implicit in that finding, is a consideration of the claim by the Applicant to have been detained on two or three occasions and accused by the police of being a terrorist.
Accordingly, this ground is not made out.
Ground 2 – “The Tribunal made jurisdictional error as it failed to ask two important questions in making a finding critical to its ultimate lack of satisfaction
Particulars
The Tribunal made the following finding at CB 294.2 of its decision:
“Given the applicant’s alleged public or other support of the Akali Dal, would not appear to have been in excess of (or even proximate to), the support allegedly provided by his father, it does not appear there is any basis to assume the applicant would have a real chance of persecution in his home village in the Punjab, for reasons of his father’s alleged political activities (or any other reason).”
In making this finding the Tribunal failed to ask the following 2 questions:
(a) “If the applicant was detained two to three days whereas his father was not detained at all, is it possible that they wanted to persecute him more than his father?”
(b) “If his mother who was less politically involved than the applicant was harassed by Congress party and police to such an extent that she fled India, would not the applicant be persecuted if he returns and engage in political activities that he engaged in before?””
Mr Silva submitted that it was not open to the Tribunal to make the finding, referred to above, without asking the question of whether the Congress Party or authorities may wish to persecute the Applicant more than his father or whether his mother fled India, in circumstances where she was less politically involved than the Applicant, would not the Applicant be at greater risk if he were he to return and engage in the political activities in which he had engaged before.
However, this contention ignores the fact that the Tribunal went on to consider the issue of relocation, even if the Applicant was to come to the adverse attention of the Congress Party or local Indian authorities in the Punjab.
The Tribunal also noted the Applicant’s claim that the Congress Party may attempt to trace him in India should he relocate as they may fear he would eventually replace his father in support of the Akali Dal in his home village. It was in consideration of that claim that the Tribunal made the conclusion referred to in paragraph 33 above.
Ultimately, the Tribunal concluded that it was satisfied that the Applicant could safely relocate in India and that it was reasonable for him to do so. Based on the Applicant’s claims, the Tribunal was not satisfied that the Applicant would legitimately wish to express his political or other views in India in any way that would give rise to more than a remote chance that he would come to the adverse attention of any person or group or the state in India. The Tribunal concluded that it was not satisfied that the Applicant’s fear of being sought by the Congress Party, were he to relocate within India, was well founded.
The Tribunal is not obliged to ask particular questions of an applicant, unless those questions were relevant considerations that the Act required the Tribunal to consider (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 55). Ground 2 essentially seeks merits review of the Tribunal’s decision arising from its disagreement with the findings and conclusions of the Tribunal about the Applicant’s claims. The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. In any event this Court cannot undertake merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Accordingly ground 2 is not made out.
Ground 3 – “In making a finding that the Tribunal may not accept that he would be even interested in legitimately expressing his political opinion in a manner that would bring him to the adverse attention of anyone should he return to India the Tribunal failed to ask an important question and thus made a jurisdictional error.
Particulars
The Tribunal failed to ask – “If the applicant was detained two to three times including once overnight for expressing his political opinion the way he already did why would not the same thing happen again if he does express his opinion the same way again now that he is also upset about the treatment to his parents.”
Ground 3 fails for similar reasons as ground 2. Essentially, it does no more than seeks merits review, which, as referred to above, this Court cannot undertake.
Accordingly ground 3 is not made out.
Ground 4 – “In making the finding “I may not accept his alleged convictions were sufficiently strong such that there disregard may constitute persecution for him” the Tribunal made jurisdictional error as it (a) failed to take relevant matters into consideration and (b) took irrelevant matters into consideration
Particulars
Failed to take into consideration the fact that his alleged political conviction was sufficiently strong to the extent that it motivated Congress party and the police to detain him two to three days (including one day overnight) and accuse him of being a terrorist.
Wrongly took into consideration the issue that “he did not appear to have any problem in Delhi in the two years he resided there that may satisfy me he could not again relocate to Delhi”. In spite of the fact that he went to New Delhi not because of a problem with the Congress party but because of Sikh militancy related problems at that time.
Failed to take into consideration the fact that he will be motivated on any account to oppose the congress party because their harassment led to his mother fleeing India and his father getting ready to flee India.”
Again this ground essentially seeks merits review of the Tribunal’s comment that it advised the Applicant that, “based on his claims, the Tribunal may not accept that his views were sufficiently strong that for him to have to disregard those views would constitute persecution for him.”
By these words, the Tribunal is putting to the Applicant that it may not accept that for him not to be able to express his views may not amount to serious harm. The Tribunal identified the manner in which it put those matters to the Applicant and noted that the Applicant did not agree. The Tribunal went on to find that, notwithstanding the Applicant’s claims to the contrary, even if the Tribunal accepted as the Applicant had come to the adverse attention of the Congress Party or the local authorities in the Punjab the Tribunal was satisfied that the Applicant could safely relocate within India.
The Tribunal identified the relevant tests for internal relocation, considered the particular circumstances of the Applicant, proceeded on the basis, that even if it were to accept the substance of the Applicant’s claims, relocation for the Applicant within India was reasonable. That conclusion was open to the Tribunal on the evidence and material before it and for which it gave detailed reasons. The Tribunal applied the correct test in relation to its consideration of the issue of relocation (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437).
Ground 4 otherwise seeks merits review, which as referred to above, this Court cannot undertake.
Accordingly, ground 4 is not made out.
Conclusion
The Tribunal complied with the statutory regime in the conduct of its review and the making of its decision.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 26 February 2007
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